Gove v. Florida Parole Com'n, 1D01-1249.

• Decision Date: 26 April 2002
• Docket Number: No. 1D01-1249.,1D01-1249.
• Citation: 816 So.2d 1150
• Parties: Shane R. GOVE, Petitioner, v. FLORIDA PAROLE COMMISSION, et al., Respondent.
• Court: Florida District Court of Appeals

816 So.2d 1150

Shane R. GOVE, Petitioner, v. FLORIDA PAROLE COMMISSION, et al., Respondent.

No. 1D01-1249.

District Court of Appeal of Florida, First District.

April 26, 2002.

Rehearing Denied June 3, 2002.

Shane R. Gove, pro se.

Mark J. Hiers, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.

VAN NORTWICK, J.

By a petition for writ of certiorari, Shane R. Gove seeks review of the trial court's order denying his petition for writ of habeas corpus. In that habeas petition, Gove contended that his detention was illegal because he had been unlawfully classified as a conditional releasee when he was released from prison in 1998 and that, as a result, his return to prison upon the Florida Parole Commission determining that he had violated the terms of his conditional release was unlawful. We agree with Gove that the trial court departed from the essential requirements of law in denying the petition for writ of habeas corpus and, accordingly, we grant the petition for writ of certiorari.

In 1992, Gove was convicted of several counts of robbery and sentenced to serve seven years in prison to be followed by three years of probation. Thereafter, he was sentenced to a three-year prison term for dealing in stolen property, which sentence was to be served concurrent with the previously imposed seven-year sentence. In 1994, Gove escaped, then was captured and returned to prison. He was never convicted of an offense relating to the escape. Instead, the Circuit Court for Hillsborough County treated Gove as a probation violator and ordered him to serve an overall nine-year term of incarceration for his robbery convictions. This treatment of Gove as a probation violator is inexplicable, because Gove was serving his seven-year sentence when he escaped and had not begun to serve the probationary period imposed.

On August 24, 1998, Gove was released under conditional release supervision. His release was revoked on July 26, 2000, after the Commission determined that he had violated the terms of his conditional release, and Gove was returned to prison. Gove's petition for writ of habeas corpus was denied upon the trial court's finding that Gove had waived the right to challenge the legality of his conditional release once he accepted the benefits of early release.

Section 947.1405(2), Florida Statutes (1997), provides, in pertinent part, that conditional release is appropriate for

(2) Any inmate who:

(a) Is convicted of a crime committed on or after October 1, 1988, and before January 1, 1994, and any inmate who is convicted of a crime committed on or after January 1, 1994, which crime is or was contained in category 1, category 2, category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida Rules of Criminal Procedure (1993), and who has served at least one prior felony commitment at a state or federal correctional institution;

(b) Is sentenced as a habitual or violent habitual offender or a violent career criminal pursuant to s. 775.084; or

(c) Is found to be a sexual predator under s. 775.21 or former s. 775.23, shall upon reaching the tentative release date or provisional release date, whichever is earlier, as established by the Department of Corrections, be released under supervision subject to specified terms and conditions, including payment of the cost of supervision pursuant to s. 948.09.

Gove contends that the Commission misinterpreted his offense history and, based on that misinterpretation, improperly applied the provisions of the conditional release program to him. He concedes that his 1992 robbery conviction constitutes a category 3 offense subject to the provisions of section 947.1405(2)(a). That statute, however, requires not only that the inmate be convicted of a qualifying crime, but also that the inmate have "served at least one prior felony commitment at the time of the conviction." It is undisputed, that Gove had not served a prior felony commitment. Gove argues that the Commission mistakenly interpreted his imprisonment following the 1994 escape as a second, or subsequent, felony commitment. He contends that he never completed service of the robbery commitment until he was released on conditional release supervision. Further, he contends that his acceptance of conditional release did not constitute a waiver of his right to object to the impropriety of applying the provisions of section 947.1405 to him. We agree.

This court's certiorari review is limited to a decision whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. Sheley v. Florida Parole Comm'n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). Here, the trial court erroneously determined that Gove's acceptance of the benefits of conditional release constituted a waiver of his right to challenge the legality of that release.

At the outset, we note that under Florida law Gove's conditional release was not a benefit, but an additional burden to him. As stated in Evans v. Singletary, 737 So.2d 505, 507 (Fla.1999):

Conditional Release (as opposed to Control Release, Provisional Credits, and Administrative Gain Time) is not an early release program. Conditional Release is an extra post-prison probationtype program. In other words, when an inmate is released due to gain time from a sentence that is eligible for conditional release, instead of going free as other offenders would do (unless they have probation or some other supervision to follow), these offenders are placed

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